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Excuse Me, Where is the Asian American Supreme Court Justice?

Sometimes, after our professor asks a question in my Asian American studies literature class, she is met only with casually evasive eye contact and that lull of students hoping someone else will answer. When this happens she will sometimes goad us, “Come on! Answer! Quit being so Asian American!” This seems a little harsh to me. Sometimes, I want to raise my hand and tell her that though I am Asian American, and while parts of the stereotype of Asian American reticence may sometimes apply to me, in this moment I’m just kind of tired and don’t really have much to say in regard to the question. But I know that to argue with her about this issue in this setting would not be productive: Her question would still go unanswered, and the true root of the entire class’s silence probably couldn’t be isolated. Some could say the silence is because no one in the class did the reading or cares enough to comment on it, others could say that as Asian American students, we have been conditioned by Western society to shrink and to not to let our thoughts pass our larynx. For every effect, there can be many causes and perhaps never an exact explanation.

When a spot opened up at the Supreme Court, there was a deluge of articles about what it meant for America and what would happen next. I knew that the president would nominate someone and then a Judiciary Committee, made up of representatives from both parties, would interrogate and then vote on that candidate. I also know that in the past 50 years, we’ve seen a welcome change to the historical line up of white men that normally emerge from this process, including: the first female justice, Sandra Day O’Connor, the first black justice, Thurgood Marshall, and the first Hispanic justice, Sonia Sotomayor. In articles detailing what was next for the Supreme Court, I saw a lot about an Asian American contender for the spot: jurist Sri Srinivasan. It would be historical if there were an Asian American Supreme Court justice, but as seems to be the case with a lot of racial issues in the United States, I asked myself why in 2016, is this only a possibilitynow? Why haven’t we had an Asian American justice yet?

So, I looked for answers. And I quickly found that explaining the current situation, much like explaining the silence in my class, is difficult. The source of the Asian American justice problem is a hydra: for everyone one possible reason explored, another two possibilities pop up. A single answer that chalks it up to race isn’t right, population size factors in as does opportunity, and nothing seems quite outside the realm of possibility.

In truth, the lack of an Asian American Supreme Court Justice could just be a numbers game. There are 19.4 million Asians in the United States, about 6 percent of the population. In an ideal United States, the Supreme Court justices would roughly reflect America’s demographics. But with only nine spots available, this becomes difficult. If one judge is meant to represent about 11 percent of the population, maybe there aren’t the numbers of Asian Americans yet to justify an Asian American justice? Furthermore, there might not be that many of Asian Americans on the pipeline to become a justice. Although not an actual requirement, the path of Supreme Court justices in the past has been pretty clear. Graduate from an Ivy League law school, work in the high courts, and cross your fingers that your political leanings won’t alienate you too much to be voted in. In this pipeline, we see Asians in fewer than 3 percent of federal judges and only 6.3 percent of lawyers in total. Yale and Harvard Law have Asian populations of 14 and 13 percent, respectively. And at the UC Berkeley School of Law, in a state with the largest population of Asians, we have 16 percent Asian students, and across the Bay at UC Hastings, it’s 24 percent.

Some could say the silence is because no one in the class did the reading or cares enough to comment on it, others could say that as Asian American students, we have been conditioned by Western society to shrink and to not to let our thoughts pass our larynx. For every effect, there can be many causes and perhaps never an exact explanation.

Vincent Chang, a UC Berkeley pre-law student, explains, “It wasn’t until ’75 when the Immigration Act was passed that you see a wave of (Asian) immigrants coming to the United States. I think with time, with more people getting involved, (we’ll start seeing) the 2nd and 3rd generation who came after ‘75 … possibly being nominated.” This could be true, as the United States’fastest growing minority, the percentage of Asian Americans rises every year, and with it, the numbers enrolled in law school.

While these numbers do signify an increase in Asian American lawyers, they still may not translate directly to more Asian Americans in the federal court, a space that produces likely candidates for the Supreme Court. “I think Asian Americans going into law tend to go on to the corporate side,” Chang hypothesized. “As children of immigrants, there is always that pressure of going onto a career that will help you make money or raise a family. And going into the public sector, you’re not going to make a lot of money and you’re going to pay all that money to go to law school.” The median salary a first-year lawyer in a private firm can expect is about $115,000, while a first-year public defender median is about $45,700. With the average debt of a student exiting Yale or Harvard Law at $127,346, the price tag might be one that the children of immigrants can’t risk.

Alexis Picard, a campus senior who is pre-law as well as an English major and Asian American studies minor, sees deeper-rooted problems regarding Asian American disinterest in pursuing the federal courts. “As an Asian American, I would feel really skeptical about the justice system with what we’ve done previously in historical aspects. I would be kind of deterred to enter that realm where white supremacy, racism and oppression is so prevalent.” The court’s historical approach to Asian Americans is, as Picard details, less than favorable: in the 1920s, it upheld a ban on naturalizing American-born Asian citizens, allowed the government to incarcerate innocent Japanese-American citizens during WWII and took until 1980 to make reparations for the actions.

It’s possible that Asian Americans just don’t feel like their voice matters to the rest of the United States. This was potentially reflected in the 2012 presidential election. A mere 48 percent of eligible Asian Americans voted, compared with 66 percent of white and 64 percent of black eligible voters. But a lack of voice is even perpetuated through a dearth of Asian Americans in fictional political realms. Picard points out, “‘House of Cards’ season four just came out and there’s not an Asian person in that show or on ‘(The) West Wing’ or ‘Suits.’ Asian Americans aren’t portrayed in those kind of political shows.”

And why aren’t Asian Americans cast as characters in these TV shows? An Asian American is more likely to have a college degree than the average American, so to imagine an Asian in political office wouldn’t be total fantasy. Picard agrees: “There’s a dissonance. We’re the model minority, we’re not even included in affirmative action because we’re ‘too successful.’ If you’re a justice, you have so much power it’s like, if we’re the model minority, why aren’t we up there at this time?” The concept of a “model minority” is a dangerous myth. Starting in the ‘60s, the idea stereotypes Asians as intelligent, hardworking and successful, but lacking individuality and personality. It neglects to address the fact that we are also individuals, some scientifically gifted, sure, while others just as charming as any politician. So if on one hand there’s a stereotype that Asian Americans are successful, why aren’t they in high-ranking positions?

Justine Cheng, another UC Berkeley pre-law student has one possible explanation, “There’s the idea of the bamboo ceiling. You’re very qualified and you can get up to a certain point, but there’s a threshold that you can reach as an Asian American. You can be qualified to be the CEO of a certain company, but how many high-achieving Asian Americans do we have that are going to high-achieving colleges and have done a lot but aren’t CEOs of these companies?” She also thinks this could explain the lack of an Asian American Supreme Court justice; if it’s applicable to a large corporation, it could also be applied to such a lofty position of power. The numbers support the bamboo ceiling in the legal field: Out of all minority lawyers in the private sector, the percentage of Asian American lawyers shrinks as one moves up the ladder. Asian Americans make up 55 percent of minority associates, 49 percent of minority partners, then dwindle to only 36 percent of minority practice group heads. So perhaps a similar bamboo ceiling could be placed in the higher courts of law leading up to the Supreme Court.

“There’s a dissonance. We’re the model minority, we’re not even included in affirmative action because we’re ‘too successful.’ If you’re a justice, you have so much power it’s like, if we’re the model minority, why aren’t we up there at this time?”

-Alexis Picard

There’s no doubt that to have an Asian American Supreme Court justice would be important. Mark Lee, a campus senior and Asian American studies major says, “By appointing an Asian American Supreme Court justice, it would kind of be a symbol that our political voice matters: There is a body that comes from our background and our experiences sitting among the justices. It says that we have a voice in the discussion and we have beliefs that have gone unnoticed for a very long time. It would be a landmark decision if that were the case. It would change things a lot.” To be a Supreme Court justice is, simply, a big deal. The most well-rounded council will interpret with the lens of many different spheres of the United States — ideally, the Supreme Court could be a place that houses a diversity of backgrounds: a variety of intelligent sharp thinkers is what will benefit the United States.

On Wednesday, President Barack Obama made his announcement of his nomination of Merrick Garland. And although I am disappointed the nomination wasn’t of a more diverse background — Merrick is another white male — I’m sure Obama had his reasons, as every nomination is imbued with many political caveats.

This also means his choice not to nominate Srinivasan had many reasons attached as well. These were probably mostly political and hopefully not because of the dull thud of the bamboo ceiling. Prior to Obama’s announcement of his choice of nomination, however, Lee did remark, “I don’t think there’s that much incentive for a president to nominate an Asian American justice. I don’t think there are any long-term implications for their political gain to do so. In recent memory, the nomination of Sotomayor, (Obama) was kind of responding to a large community that advocated for a Latina to come to the branch.” Picard agrees that maybe there hasn’t been enough galvanization in the Asian American community, saying, “The real question is does the Asian American community want a justice? I would assume yes, but are we doing enough as a community to put them there? If Obama or the next candidate is going to elect an Asian American justice, the community should want that first.” So, though Srinivasan had the honor of being on the short list for Scalia’s replacement, perhaps next time around, the Asian American voice will call, will be louder, and will have our voices heard.

Taking away class time to get to the root of why the classroom falls silent after my professor asks a question wouldn’t be productive. The true crux of the problem probably couldn’t be found. My professor isn’t interested in hearing why the deadpan faces in her class aren’t responding to her question — she just wants a loud, clear answer. So though we as individuals needs to think critically about where the Asian American Justices have been, it is even more important for the community to demand, loud and clear, a solution.